Kasyaf Bina Sdn Bhd v Lembaga Kemajuan Tanah Persekutuan (Felda) (WA-24C(ARB)-64-11/2024)

The Plaintiff relies on several grounds under Sections 37(1)(a)(iv), 37(1)(a)(v), 37(1)(b)(ii), 37(2)(b)(i) and/or 37(2)(b)(ii), or Section S/N C8iy0fK5GkyntQdmNJhQjw **Note : Serial number will be used to verify the originality of this document via eFILING portal 3 37(3) of the Act, and contends that the Award is seriously flawed, unconscionable, contradictory, and in breach of natural justice.

Having considered the respective affidavit evidence, in particular, the Award, as well as the written and oral submissions of the parties, I find that the Plaintiff has failed to meet the threshold required to set aside an arbitral award within the narrow confines of Section 37 of the Act. Accordingly, the Court dismissed the Setting Aside Application with costs of RM12,000.00, subject to the payment of allocatur.

I now set out in full the grounds of my decision. B. SALIENT FACTUAL BACKGROUND [5] The Plaintiff was the main contractor appointed by the Defendant, who intended to undertake a design-and-build project for the construction of 100 units of houses utilising the Industrialised Building System (“IBS”) for the Defendant’s settlers at Felda Bukit Tajau, Pahang. The Plaintiff submitted its proposal and tender for the said works. [6]

obtaining all necessary planning permissions and approvals from the local council;

designing, constructing, and completing the Works with due care and skill by the Date for Completion; and

providing a complete Mock-Up Unit within four months of the Project Director’s order. C. PARTIES’ DISPUTE [8] The Defendant alleges that the Plaintiff breached the Contract by failing:

to obtain the requisite Development Order (“DO”) from the local council;

to complete the whole of the Works by the second extended completion date of 4.4.2015; and

to complete the Mock-Up Unit within four months from the commencement date of the Works, i.e., by 15.4.2014. [9] Separately, on 5.8.2015, the Plaintiff issued a notice alleging that the Defendant was in breach of the Contract and gave 30 days to S/N C8iy0fK5GkyntQdmNJhQjw remedy the alleged breach, reserving its right to terminate. On 4.9.2015, the Plaintiff issued a notice purporting to terminate the Contract. However, on 30.9.2015, the Defendant contends that the Plaintiff admitted that these notices had been sent to the wrong address, contrary to the Contract, and thereafter re-sent them to the correct address. [10] The Defendant refuted all allegations, asserting that it was not in breach and, in any event, had remedied any alleged issues within the stipulated 30 days, rendering the Plaintiff’s termination wrongful. [11] On 27.6.2016, the Defendant issued a formal notice requiring the Plaintiff to remedy the breaches which the Defendant alleged the Plaintiff had committed. As the Plaintiff failed to remedy the breaches, the Defendant terminated the Contract on 13.7.2016. D. ARBITRATION PROCEEDINGS [12] The dispute led to arbitration proceedings wherein the Defendant (Claimant in Arbitration) claimed the following: a) Liquidated Ascertained Damages (“LAD”) for the Mock-Up Unit of RM158,200.00, calculated at the rate of RM200.00 per day from 15.05.2014 to 13.07.2016 (791 days); b) LAD for Non-Completion of the Works of RM3,560,000.00, calculated at the rate of RM10,000.00 per day from 24.07.2015 to 13.07.2016 (356 days); and c) Forfeiture of the Bank Guarantee of RM618,170.00 for the Performance Bond under the Contract. S/N C8iy0fK5GkyntQdmNJhQjw [13] The Plaintiff denied the claims and instead issued a counterclaim on 23.01.2017 for, amongst others, the following:

Loss and Expenses accrued during the Project in the sum of RM727,279.93, together with late payment interest rate of 5% per annum thereto;

Variation Work Done in the sum of RM1,456,673.97; and

Work Done under IPC 15 in the sum of RM1,122,714.40. [14] The Arbitration proceeding took 18 days over the span of 3 years with 10 witnesses testifying (5 on each side), resulting in the Arbitrator issuing the Final Award on 14.8.2024. This was later amended on 19.9.2024 to correct clerical errors and the award sum. [15] The key outcome per the Award (as amended), as tabulated by the Defendant in its written submission, sets out the following awards:

LAD for Non-Completion of the Mock-Up Unit RM158,200.00, calculated at the rate of RM200.00 per day from 15.05.2014 to 13.07.2016 (791 Allowed – paragraph 29 of the Amended Award S/N C8iy0fK5GkyntQdmNJhQjw days)

LAD for Non-Completion of the Works RM3,560,000.00, calculated at the rate of RM10,000.00 per day from 24.7.2015 to 13.7.2016(356 days) Allowed with a reduced sum of RM3,000,000.00 – paragraph 42 of the

Forfeiture of the Bank Guarantee RM618,170.00 Dismissed – paragraph 71 of the

General Damages and/or Aggravated and/or Exemplary Damages - Dismissed – paragraph 76 of the

Costs of Arbitration RM256,000.00 No order as to costs – see paragraph 137 of the Award

Loss and RM727,279.93, Dismissed – see S/N C8iy0fK5GkyntQdmNJhQjw Expenses accrued during the Contract period together with late payment interest rate of 5% per annum thereto paragraph 98 of the

Variation Work Done RM1,456,673.97 Allowed with a deduction of pre-award interest rate of RM1,267,693.68 – paragraph 117 of the Award

Work Done under IPC 15 RM1,122,714.40 Allowed with a deduction of pre-award interest rate of RM921,104.96 – see paragraph 2(a) of the Learned Arbitrator’s letter dated 19.09.2024 and paragraph 123 of the

GST claimed under IPC 15 - Dismissed – see paragraph 132 of the

Performance Bond RM694,778.84, together with late Dismissed – see paragraph 71 of the S/N C8iy0fK5GkyntQdmNJhQjw payment interest rate of 5% per annum thereto

General Damages and/or Aggravated and/or Exemplary Damages - Dismissed – see paragraph 76 of the

Costs of Arbitration RM200,000.00 No order as to costs – see paragraph 137 of the Amended Award E. COURT PROCEEDINGS [16] The Setting Aside Application cause papers consisted of:

Amended O.S. dated 5.5.2025 (Encl. 30) previously (“Encl.1”);

Plaintiff’s Affidavit In Support (‘AIS’) affirmed by Zamri

Defendant’s Affidavit In Reply (‘AIR’) affirmed by Mahadzir

Plaintiff’s AIR affirmed by the same deponent on 18.2.2025 (“Encl. 16”). S/N C8iy0fK5GkyntQdmNJhQjw F. APPLICABLE LAW [17] It is trite law that, pursuant to Section 36(1) of the Act, an award made by an arbitral tribunal pursuant to an arbitration agreement is final and binding on the parties. [18] Section 8 of the Act further provides that this Court shall not intervene in matters governed by the Act except where expressly permitted. This reflects the minimalistic approach to judicial intervention in arbitration and arbitration-related matters. [19] The Plaintiff’s application to set aside the Award was made pursuant to Section 20, and Sections 37(1)(a)(iv), 37(1)(a)(v), 37(1)(b)(ii), 37(2)(b)(i), and 37(2)(b)(ii) of the Act, which provide as follows: “20. The parties shall be treated with equality and each party shall be given a fair and reasonable opportunity of presenting that party’s case.

(1) An award may be set aside by the High Court only if –

the party making the application provides proof that-

…….

(ii) …….

(iii) …… S/N C8iy0fK5GkyntQdmNJhQjw

(iv) the award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration;

subject to subsection (3), the award contains decisions on matters beyond the scope of the submission to arbitration;

(vi) ……

the High Court finds that –

……

(ii) the award is in conflict with the public policy of Malaysia.

Without limiting the generality of subparagraph

(1)(b)(ii), an award is in conflict with the public policy of Malaysia where –

……

a breach of the rules of natural justice occurred –

during the arbitral proceedings; or

(ii) in connection with the making of the award.

…..”. [20] In Master Mulia Sdn Bhd v Sigur Rus Sdn Bhd [2020] 12 MLJ 198, the Federal Court articulated the governing principles S/N C8iy0fK5GkyntQdmNJhQjw applicable to an application to set aside an arbitral award, stating, inter alia: “[53] In the light of the above, we think that the guiding principles on the exercise of residual discretion when an application for setting aside an award is grounded on breach of natural justice may be stated as follows:

first, the court must consider: (a) which rule of natural justice was breached; (b) how it was breached; and (c) in what way the breach was connected to the making of the award;

second, the court must consider the seriousness of the breach in the sense of whether the breach was material to the outcome of the arbitral proceeding;

third, if the breach is relatively immaterial or was not likely to have affected the outcome, discretion will be refused;

fourth, even if the court finds that there is a serious breach, if the fact of the breach would not have any real impact on the result and that the arbitral tribunal would not have reached a different conclusion the court may refuse to set aside the award;

fifth, where the breach is significant and might have affected the outcome, the award may be set aside;

sixth, in some instances, the significance of the breach may be so great that the setting aside of the award is practically automatic, regardless of the effect on the outcome of the award;

seventh, the discretion given the court was intended to confer a wide discretion dependent on the nature of the breach and its impact. Therefore, the materiality of the breach and the possible effect on the outcome are relevant factors for consideration by the court; and

eighth, whilst materiality and causative factors are necessary to be established, prejudice is not a pre-requisite or requirement to set aside an award for breach of the rules of natural justice.” [54] Underlying these guiding principles is the policies and objectives of the New York Convention and the Model Law. As a matter of principle and policy, the courts will seek to support rather than frustrate or subvert the arbitration process. The role of courts in the arbitral regime in general is one of assistance supportive of the arbitral process and not one of interference with it. Bearing in mind the two primary objectives of the Model Law (respect for and preservation of party autonomy and ensuring procedural fairness), the courts do not review the merits of the arbitral tribunal’s decision. [21] I am mindful that it is trite law that, in a setting-aside application under Section 37 of the Act, the High Court does not sit as an appellate body to review the correctness of an arbitral award on its merits. The arbitral tribunal is the sole authority entrusted with evaluating the evidence and making findings of fact. It is not the S/N C8iy0fK5GkyntQdmNJhQjw function of this Court to revisit or scrutinise the merits of the parties’ respective cases as presented before the tribunal. I further recognise that frequent judicial interference with arbitral awards would undermine the very purpose and efficacy of arbitration. [22] In the case of Pancaran Prima Sdn Bhd v Iswarabena Sdn Bhd and another appeal [2021] 1 MLJ, the Federal Court, inter alia held: “[10] The principle is trite that courts do not exercise appellate jurisdiction over arbitration awards: see Pembinaan LCL Sdn Bhd v SK Styrofoam (M) Sdn Bhd [2007] 4 MLJ 113. The only provisions in the Act that provide for the setting aside of domestic awards are s 37(1) and s 42(1)–(4) of the Act (before its deletion).” [23] It is settled law that the burden of proving the existence of justifiable grounds to set aside an arbitral award lies on the party seeking such relief, See Ajwa For Food Industries Co (Migop), Egypt v. Pacific Inter-Link Sdn Bhd & Another Appeal [2013] 2 CLJ 395, where the Court of Appeal held as follows: “[13]...The onus is on the party making the application to provide proof. The court's discretion in setting aside arbitral award is now limited to the narrowly defined circumstances in line with the modern international arbitral practice... The court should be restrained from interference unless it is a case of patent injustice which the law permits in clear terms to intervene...” S/N C8iy0fK5GkyntQdmNJhQjw G. SUMMARY OF THE PLAINTIFF & DEFENDANT’S SUBMISSIONS [24] Whilst the Plaintiff has invoked several limbs of Section 37 as the basis for seeking to set aside the Award, its principal contention is that the Award is in conflict with the public policy of Malaysia. In support of this assertion, the Plaintiff relies on the Federal Court decision in Jan De Nul (Malaysia) Sdn Bhd & Anor v Vincent Tan Chee Yioun & Anor [2019] 1 CLJ 1, wherein the Court, inter alia, held that: “[55] Section 37(2)(b)(ii) of the AA 2005 provides that an award made by an arbitral tribunal would be in conflict with the public policy of Malaysia if a breach of the rules of natural justice occurred in connection with the making of the award. The circumstances stated in s. 37(2) are by no means exhaustive. Other appropriate circumstances may also fall under the category of “public policy” in view of the opening phrase “without limiting the generality of sub-para (1)(b)(ii)” as appears in s. 37(2) of the AA 2005... [58] The scope of public policy ground for setting aside an arbitral award could only be invoked in deserving case i.e. in instances where it appears a violation of the most basic notions of morality and justice. It covers fundamental principles of law and justice in substantive as well as procedural respect. Instances where the upholding of an arbitral award would shock the conscience, or clearly injurious to the public good, or wholly offensive to the ordinary reasonable and fully informed member of the S/N C8iy0fK5GkyntQdmNJhQjw public, had been held by courts in various jurisdiction to fall within the category of public policy ground for setting aside an arbitral award. Thus, instances such as 'patent injustice', 'manisfestly unlawful and unconscionable', substantial injustice', 'serious irregularity' and other similar serious flaws in the arbitral process and award, would also fall within the applicable concept of public policy and therefore by virtue of s. 37(1)(b)(ii) of the AA 2005 when proven, can be a ground for the court to exercise its discretion to set aside the award (see: Ajwa for Food Industries). Such instances fall within 'the basic and fundamental notions or principles of justice'……The terms 'patent injustice' or 'substantial injustice' or 'manifestly unlawful and unconscionable' as often used by the court in setting aside arbitral awards, do not mean injustice which is more than de minimis; what is required is that the injustice had real effect and had prejudiced the basic right of the applicant…". [25] Based on the above decision, the Plaintiff asserts that the Award is so fundamentally flawed that it violates the most basic notions of morality and justice. The Plaintiff has advanced 8 grounds which, in its view, warrant the Award being set aside in line with the principles articulated by the Federal Court. [26] The Defendant’s position is that, upon proper scrutiny of these 8 grounds, it is evident that the Plaintiff is merely dissatisfied with the Learned Arbitrator’s findings. The Defendant contends that the Plaintiff is, in substance, attempting to reopen and re-litigate S/N C8iy0fK5GkyntQdmNJhQjw factual findings which fall squarely within the province of the arbitral tribunal. [27] The Defendant further submits that it is trite, as a matter of general principle and consistent with the spirit of the Act, that the Malaysian Courts adopt a restrained approach and should be slow to interfere with or set aside an arbitral award. In Jan De Nul (M) Sdn Bhd & Anor v Vincent Tan Chee Yioun & Anor [2019] 1 CLJ 1, the Federal Court held, inter alia, that: “[55] ... But in applying the concept for the purpose of setting aside an award under s 37 of the AA 2005, the concept of public policy ought to be read narrowly and more restrictively. [57] The court must evaluate the nature and impact of the particular breach in deciding whether the award should be set aside under s 37. The court must also consider the background policy of encouraging arbitral finality and minimalist intervention approach to be adopted in line with the spirit of UNCITRAL Model Law. The effect of ss 8, 9, 37 and 42 of the AA 2005 is that the court should be slow in interfering with or setting aside an arbitral award. The court must always be reminded that constant interference of arbitral award will defeat the spirit of the AA 2005 which for all intent and purposes, is to promote one-stop adjudication in line with the international practice... In this regard, the court needs to recognise the autonomy of the arbitral process by encouraging finality; and its advantage S/N C8iy0fK5GkyntQdmNJhQjw as an efficient alternative dispute resolution process should not be undermined.” H. ANALYSIS OF THE PLAINTIFF’S GROUNDS FOR SETTING ASIDE [28] Based, inter alia, on the above principles, I now proceed to address the eight specific grounds advanced by the Plaintiff, in the sequence presented by learned counsel for the Plaintiff during the hearing of this matter: a) Ground No. 1: The Award is seriously flawed as a result of its inconsistencies Plaintiff’s Position [29] The Plaintiff contends that the Learned Arbitrator’s finding that the Defendant had rightfully terminated the Contract is inconsistent with three other findings in the Award, namely:

the award to the Plaintiff of RM1,267,693.68 for variation works and RM921,104.96 for works under Interim Payment Certificate No. 15, together with interest at 5% per annum;

(ii) the Learned Arbitrator’s reliance on Clause 64.0 of the Contract in dismissing the Plaintiff’s claim for loss and S/N C8iy0fK5GkyntQdmNJhQjw expense. The Plaintiff argues that the reliance on Clause 64.0 is fundamentally erroneous, as the clause applies only where the Plaintiff had validly terminated the Contract, and is therefore not available to the Defendant; and

(iii) the finding that the Defendant was not entitled to forfeit the Performance Bond under Clause 10.7 of the Contract. The Plaintiff submits that if the Defendant had validly terminated the Contract, the Performance Bond would have been forfeitable. Thus, the dismissal of the Defendant’s claim for forfeiture demonstrates that the Arbitrator could not logically have found that the termination was valid. [30] On the basis of the above 3 complaints, the Plaintiff asserts that the Award is fundamentally contradictory, seriously flawed, shocking, and amounts to an afterthought. Defendant’s Position [31] The Defendant maintains that the Learned Arbitrator’s findings contain no error or inconsistency, and submits as follows:

The validity of the termination is a separate and distinct issue from the Plaintiff’s entitlement to payment for variation works and IPC No. 15. On the facts, the Learned Arbitrator was entitled to find that the Plaintiff had no right to terminate, yet remained entitled to payment for work completed earlier.

(ii) The matters relied on by the Plaintiff relate to different time periods. The variation works and IPC No. 15 concern the period between December 2013 and July 2015, whereas the termination dispute only arose in July 2016, nearly one year later.

(iii) The Plaintiff’s loss and expense claim was dismissed primarily due to its failure to comply with Clause 50 of the COC. Even if the Learned Arbitrator misstated the clause reference (which is denied), this does not affect the substantive finding that the Plaintiff’s termination was wrongful, nor does it justify the setting aside of the Award.

(iv) The bank guarantee issue is separate and governed solely by the terms of the guarantee. In any event, the Learned Arbitrator expressly considered the Defendant’s arguments and provided his reasons for dismissing the Defendant’s claim for forfeiture of the Performance Bond based on the evidence before him. Court’s findings [32] I have carefully considered the Learned Arbitrator’s evaluation of the issues before him and his findings in relation to the Plaintiff’s complaints. As the issues raised by the Plaintiff are intertwined with the question of whether the Contract was validly terminated, the Learned Arbitrator addressed these complaints within various portions of the Award, including at paragraphs 30–42, 50–54, 65– 66, 67–71, 72–76, 77–87, 99–117 and 118–123. S/N C8iy0fK5GkyntQdmNJhQjw [33] Having scrutinised the complaints put forward by the Plaintiff, I amunable to identify any matter that demonstrates a breach of natural justice or conflict with public policy. The Plaintiff has not established any procedural unfairness, nor has it shown that the Learned Arbitrator exceeded the scope of his jurisdiction. [34] In my view, the matters raised under Ground 1 plainly fail to meet the statutory threshold under Section 37 of the Act or the principles articulated in Master Mulia (supra). This is because, inter alia:

the complaints do not relate, in any manner, to a breach of the rules of natural justice, whether concerning the rule against bias or the right to be heard; and/or

the issues determined by the Learned Arbitrator fall squarely within the scope of the parties’ submissions and are not decisions made in excess of his jurisdiction. [35] It bears emphasis that disagreements with the merits of the Arbitrator’s reasoning, or assertions that certain findings should have been decided differently, do not constitute grounds for judicial intervention under Section 37 of the Act. The Court’s role is not to reassess or reweigh the evidence, but only to ensure that the arbitral process was fair, within jurisdiction, and free from violations of natural justice. [36] The Plaintiff’s allegations that the Award contains internal inconsistencies — particularly between the findings on termination, variation works, and interim payments. However, in my S/N C8iy0fK5GkyntQdmNJhQjw assessment, these alleged inconsistencies do not rise to the level of a breach of natural justice. The Learned Arbitrator was entitled to find that, although the Defendant had lawfully terminated the Contract, the Plaintiff nonetheless remained entitled to payment for works completed prior to termination. This distinction is both logical and permissible within the contractual framework, and cannot be characterised as irrational or unconscionable. [37] Furthermore, the Learned Arbitrator’s evaluation of the factual matrix concerning the bank guarantee-especially his finding that the guarantee had expired-is a matter falling squarely within his fact-finding jurisdiction. Such findings are not open to interference by this Court in an application under Section 37 of the Act. b) Grounds No. 2 & 4: The Award is unlawful and unconscionable when the Arbitrator rewrote the terms of the Contract – (a) the proper person to terminate the Contract; and (b) commencement of Works for the Mock-Up Unit. c) Ground No. 3: Finding that the Defendant’s Notice to Remedy Breach was proper and lawful constituted an injustice to the Plaintiff. Plaintiff’s Position [38] The Plaintiff contends that the Learned Arbitrator’s finding — S/N C8iy0fK5GkyntQdmNJhQjw based on his interpretation of the COC — that the Pengarah Besar FELDA was the proper person to terminate the Contract on behalf of the Defendant pursuant to Clause 60.1(b) contradicts Clause 8.6(b) of the COC. The Plaintiff therefore alleges that the Learned Arbitrator effectively rewrote the terms of the Contract. [39] Under Ground 3, the Plaintiff claims that the Learned Arbitrator’s finding that the Defendant’s Notice to Remedy Breach was proper and lawful is erroneous because the Learned Arbitrator failed to justify or properly consider the Plaintiff’s explanations for not resuming Works. It is the Plaintiff’s case that the Defendant’s failure to issue a Notice of Resumption prevented the Plaintiff from recommencing the Works, and the Learned Arbitrator wrongly disregarded this explanation. [40] Under Ground 4, the Plaintiff further asserts that the Learned Arbitrator’s decision to allow the Defendant’s claim for LAD in relation to the Mock-Up Unit contradicts the terms of the COC. The Plaintiff’s position is that construction of the Mock-Up Unit could only commence once the Development Order (“DO”) was obtained. The Plaintiff alleges that the Learned Arbitrator erred in interpreting the COC by finding that no separate instruction was required for commencement of the Mock-Up Unit Works. [41] Taking these three complaints collectively, the Plaintiff submits that the findings are so fundamentally flawed and unreasonable that the Learned Arbitrator effectively and unconscionably rewrote the terms of the Contract. S/N C8iy0fK5GkyntQdmNJhQjw Defendant’s Position [42] The Defendant contends that there is no error or contradiction in the Learned Arbitrator’s findings on the issues above, as the Arbitrator dealt with all three matters comprehensively at paragraphs 55–64, 77–87 and 20–29 of the Award. It is submitted that interpretation of the COC is within the Arbitrator’s mandate, and preferring one party’s argument over another does not constitute a reviewable error. Court’s Findings [43] I find that the Plaintiff’s complaint that the Arbitrator “rewrote” the contract is, at best, a grievance against his interpretation of the conditions of Contract. Interpretation of contractual clauses falls squarely within the Arbitrator’s jurisdiction. [44] As I have held in respect of Ground 1, Grounds 2, 3 and 4 similarly fail to meet the threshold under Section 37 of the Act or Master Mulia (supra). They are premised on the Plaintiff’s dissatisfaction with the way the Arbitrator interpreted and applied the COC in determining:

the proper person authorised to terminate the Contract;

whether the Notice to Remedy Breach was lawful; and

when the Mock-Up Unit Works were required to commence. None of these complaints relate to any breach of natural justice or excess of jurisdiction. S/N C8iy0fK5GkyntQdmNJhQjw [45] The Defendant has referred to the Federal Court’s authority in The Government of India v Cairn Energy India Pty Ltd & Anor [2011] 6 MLJ 441, which held: “[36] The construction of an agreement is a question of law. It follows that if the construction of an agreement is the sole matter that is referred to arbitration, it is not open for challenge in the broad sense….. Nevertheless, it still may yet be challenged in extremely limited circumstances, ie if the award is tainted with illegality….. .” [46] Further, the Defendant also referred to the case of Propel Synergy Sdn Bhd v Vistasik Sdn Bhd and another case [2022] MLJU 824, a decision of Her Ladyship, Dato’ Aliza Sulaiman (affirmed by the Court of Appeal): “[178] After having read the relevant parts of the Award concerning the present complaints by PSSB before this Court, I have no hesitation whatsoever in finding that PSSB’s allegation that the arbitral tribunal was other than impartial is without merit. This is because, PSSB is essentially unhappy with the Arbitrator’s assessment of the evidence and his findings of facts and/ or of law. This unhappiness was transformed into an accusation that the Arbitrator did not make an objective determination of the issues that he has to resolve.” S/N C8iy0fK5GkyntQdmNJhQjw [47] I also refer to the Court of Appeal’s decision in Tune Group Sdn Bhd & Ors v Padda Gurtaj Singh and another appeal [2023] 6 MLJ 345 wherein the Court held: “(5) It ought to be noted that any attempt by the appellants to question the substantive merits of the arbitrator’s finding on the concluded contract … was impermissible by virtue of s 36 of the AA because that would constitute an appeal on the award which plainly could not be entertained…” [48] Guided by the authorities above, I hold that the Plaintiff’s complaints amount to dissatisfaction with factual and evaluative findings, which lie exclusively within the arbitral domain. d) Ground No. 5: The Award in granting LAD of RM3 Million to the Defendant is a violation of justice Plaintiff’s Position [49] The Plaintiff contends that allowing the Defendant’s LAD claim in the reduced sum of RM3,000,000 contradicts the Arbitrator’s earlier findings that delays were not solely attributable to the Plaintiff. Further, the Plaintiff alleges that the Arbitrator failed to clarify how this reduced sum was computed. [50] The Plaintiff argues that the finding is “shocking” and violates justice and fairness. S/N C8iy0fK5GkyntQdmNJhQjw Defendant’s Position [51] The Defendant asserts that the Arbitrator considered paragraphs 30–42 and 66 of the Award and exercised his discretion in the Plaintiff’s favour by reducing the LAD amount. [52] The Arbitrator had set out both parties’ positions on quantum before arriving at his conclusion, and quantum assessment is distinct from whether payment schedules were met. Court’s findings [53] Similar to Grounds 1–4, Ground 5 does not meet the threshold under Section 37 or Master Mulia (supra). The complaint that the Arbitrator did not explain how LAD was quantified is unmeritorious. The Award shows that he considered delays attributable to both sides and reduced the Defendant’s claim accordingly. Assessment of LAD is a matter of fact and discretion, not natural justice. [54] I am guided by his Lordship Nantha Balan J’s (as his Lordship then was) decision in AMDAC (M) Sdn Bhd v BYD Auto Industry Co Ltd [2020] 11 MLJ 281 wherein his Lordship held: “[217] In any event, this was an amount which the arbitrator had found as a fact, was due and owing by AMDAC to BYD as per the terms of the CA. It was not an amount which the arbitrator ‘plucked from the air’. Ultimately, the arbitrator is the S/N C8iy0fK5GkyntQdmNJhQjw ‘master of facts’. And any which way that one looks at it, this issue does not qualify as a question of law;” e) Grounds No. 6 & 7: Alleged suppression of evidence on the DO & Notice of Termination Plaintiff’s Position [55] Under Ground 6, the Plaintiff contends that the Arbitrator erred in finding that the Plaintiff failed to obtain the DO, alleging that the Arbitrator only considered two documents and ignored the Plaintiff’s evidence. [56] Under Ground 7, the Plaintiff alleges that the Arbitrator wrongly found the Plaintiff’s Notice of Termination to be invalid and disregarded relevant evidence. [57] The Plaintiff claims that this amounted to suppression of evidence and denial of fair hearing. Defendant’s Position [58] The Defendant maintains that Grounds 6 and 7 again do not meet the Section 37 threshold. The Plaintiff is merely attacking the Arbitrator’s assessment of facts. S/N C8iy0fK5GkyntQdmNJhQjw [59] The Defendant submits that the Arbitrator considered the Plaintiff’s submissions and evidence—see paragraphs 43–49 and 77–87 of the Award. Further, the Arbitrator is not obliged to address every piece of evidence in writing. Court’s Findings [60] I find that the allegations do not meet the requirements of Section 37 or the threshold in Master Mulia (supra). I find that the allegations of suppression of evidence or bias are unsupported by cogent evidence. The Award shows that the Arbitrator considered submissions, pleaded case and documentary evidence. The absence of a specific response on a specific issue by the Learned Arbitrator does not automatically translate to a breach of natural justice. [61] I agree with the apt observation of His Lordship, Ahmad Fairuz Zainol Abidin JC (as his Lordship then was) in Allianz General Insurance Company v Virginia Surety Company Labuan Branch [2020] MLJU 331: “[31] Natural Justice does not demand that a party is entitled to receive responses to all submissions and arguments presented for only the right to be heard is fundamental.......” “[34] ... the failure of the Tribunal ... to explain its disagreement on the applicability of the utmost good faith principle beyond the four (4) paragraphs in the Majority Award cannot be an immediate basis to suggest a breach of Natural Justice. A S/N C8iy0fK5GkyntQdmNJhQjw tribunal is not obliged to slavishly adopt the position of parties but instead it is allowed to pick and choose the arguments it deems necessary for its consideration”. [35] In short, the Tribunal was not obliged to repeat and regurgitate all the arguments of the Plaintiff when arriving at their finding. Not only would it be a cumbersome exercise but it also means that the Tribunal would be embarking on a repetition of the arguments and expressing their disagreement on each and every point raised by the Plaintiff”. f) Ground No. 8: The Award in dismissing Plaintiff’s Counterclaim is shocking and offensive Plaintiff’s Position [62] The Plaintiff contends that the Arbitrator wrongly dismissed its counterclaim for loss and expense (RM727,279.93) by ignoring evidence and misinterpreting Clauses 64(c)(ii) and 60.1 of the COC. The Plaintiff characterises the Award as offensive and violative of basic notions of morality and justice. Defendant’s Position [63] The Defendant submits that Ground 8 is merely a repetition of Ground 1 and again attacks the Arbitrator’s factual evaluation and interpretation of the COC. S/N C8iy0fK5GkyntQdmNJhQjw [64] The Arbitrator’s findings are supported by his analysis of the factual matrix presented by the parties and the applicable legal principles at paragraphs 90–98 of the Award. [65] The Arbitrator was entitled to rely on Sunnisa Sdn Bhd v Kerajaan Malaysia & Anor [2020] MLJU 283 in concluding that the Plaintiff was not entitled to loss and expense. Court’s Findings [66] Having reviewed the Learned Arbitrator’s evaluation of the issue in paragraphs 90 to 98 of the Award and the Learned Arbitrator’s reliance on the case of Sunnisa (supra), I am unable to agree with the Plaintiff’s contention that the learned Arbitrator’s finding is one that ‘offends and violates’ the very basic notions of morality and justice. [67] As stated earlier, dissatisfaction with the merits of the reasoning or insistence that findings ought to have been different does not justify intervention under Section 37. Section 20 of the Act [68] The Plaintiff also alleges breach of Section 20 of the Act. After reviewing the Award, I find no evidence of such breach. The Plaintiff was given a full and fair opportunity to present its case, including filing Witness Statements, Re-Amended Statements, introducing documents, calling witnesses and filing detailed submissions. S/N C8iy0fK5GkyntQdmNJhQjw [69] The Arbitrator expressly stated, including at paragraphs 138-139 of the Award, that he considered all evidence and submissions. There is no reasonable basis for this Court to doubt his declaration.

[70] In totality, the Plaintiff’s grounds amount to dissatisfaction with the merits of the Award. They do not meet the threshold under Section 37 of the Act. To allow the application would improperly invite the Court to assume an appellate role contrary to established principles of arbitral finality. [71] I therefore find that the Plaintiff has failed to demonstrate any breach of natural justice, public policy, or excess of jurisdiction. [72] The Plaintiff’s OS to set aside the Final Award (as amended) dated 19.9.2024 is dismissed with costs of RM12,000, subject to allocator. 29th September 2025 sgd. RAJES RAGHAVJI JUDICIAL COMMISSIONER HIGH COURT CONSTRUCTION COURT 1 KUALA LUMPUR S/N C8iy0fK5GkyntQdmNJhQjw COUNSEL FOR THE PLAINTIFF: Steven Seah Shu Keen (Messrs C.S. Tan Seah & Partners) COUNSEL FOR THE DEFENDANT: Ariff Bin Rozhan, Nurul Farhani Kamarudin dan Nisrina binti Khairil Azmi (Messrs Ariff Rozhan & Co.) S/N C8iy0fK5GkyntQdmNJhQjw